A Medical Malpractice Attorney Tells It Like It Is

Below is conversation between an Emergency Physician and a medical malpractice attorney. It was originally posted on Student Doctor Network by an anonymous poster that goes by the handle “TrumpetDoc.” It has been reprinted and edited with permission of the original author. If you have any thoughts or experience regarding medical malpractice, from either the plaintiff or defendant side, I’m sure you’ll find it quite interesting.

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Recently I [TrumpetDoc] had a discussion with a local medical malpractice plaintiffs’ attorney at a social gathering. Since I have been hearing often from my former group’s lead MD/JD and influential leaders in Emergency Medicine, that increased medical testing never protected anybody, I asked his thoughts on the subject. His comment was,

“That’s Bull—t! When there is a bad case or outcome, and I see an upstream doc that had the chance to make the diagnosis with a test or procedure, I smile every time. I can get an expert from any specialty to debunk a doc’s thought that his/her exam and thoughts are good enough these days. And if we go to trial, I have a pretty set script here. To the effect of ‘so Doctor, you just didn’t care enough about my client to order this test?’ Or ‘so my client was just a statistic, just a percentage to you?’… [Juries] love that stuff!”

He went on to explain that the medical malpractice environment will be getting worse for us doctors and he was extremely bullish on the med-mal business in the coming years. He continued on,

“You guys are being hung out to dry. So are hospitals. There is already starting to be a contraction on spending and ‘costs.’ This is just awesome for me. There will be a lot of bad discharges, refused admits, procedure delays, diagnoses delays, all in the name of ‘costs.’ Your societies and hospitals are masking this as evidence based practice, etc. But I can get a jury to see that very differently. A lot of physicians will be paying out before long, as will hospitals…Testing is what makes diagnoses, saves people.”

I rebutted by explaining that malpractice cases are best prevented and defended not by practicing “defensive medicine” but by documenting in the chart our thought process, differential diagnosis and rationale, using the concepts of clinical acumen, experience, and evidence and that our own experts could and would defend our actions. He responded with,

“But that is in your world; people live in mine… juries live in mine,” with a smug smile and chest tapping. I had to restrain myself. He continued on, “If a patient is in the ER and wants to be admitted…you better just pray nothing happens in a reasonable time frame after if you discharge them against their wishes.” I asked about defensive medicine protecting from us suits and he said,

“To a point, it does. Will you get sued? Sure. Will I be less inclined to take a case that had a complete workup? Yup. If you appear to me like you cared and did everything you could, you certainly more protected.”

To him that equals ordering tests such as labs, CTs, and MRIs in the ED and admitting patients to avoid risk. He went on to say,

“Nurses will hang you. EHRs [Electronic Health Records] are awesome! And nurses chart everything they freaking think of while in the ER with a patient. They are there to cover their butt, and often it is very helpful to me. It is so common that there are discrepancies in the medical record, and now they are so easy to find.” Regarding Choosing Wisely, he said,

“This will do nothing to protect anyone. Any junior litigator can paint the doc and societies as the bad guy here.” The conversation made me cringe. The “perception” is that tests must be done. But we are being told that there is no reason to fear, that our own efforts to reduce healthcare will come back to bite us. At best, the powers that be are simply not telling it like it is. – TrumpetDoc

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Having read this online, I was struck by what appeared to likely be brutal and transparent honesty, and the words though very harsh, seemed to ring true. On one hand, there’s much talk nowadays of “reducing costs” by decreasing testing and admission to save “a broken system,” yet on the other hand, we receive signals seeming to imply that no missed diagnosis is acceptable, that the risk of not admitting and not ordering a test is much greater than one of questionable necessity. We are told that it is our job to make diagnoses and admit sick people. We are also told that practicing defensive medicine will not “defend” against anything or prevent lawsuits. Yet at the same time, the gold standards of diagnosis and treatment for many of our most critical diagnoses are exactly what we are told will not protect us: diagnostic tests and the act of admitting people to the hospital for further treatment and evaluation. The words of our own teachers seem to ring more hollow and less true, than the words of one who many would cast as “the enemy.”

What is your opinion? Are these just the empty words of an overly boastful plaintiff’s attorney intent on rattling the cage of an unwitting and disarmed physician? Or do they ring true, and sound more like “strategic secrets” gifted from an adversary in a moment of weakness or rare contrition?

Please comment below, and click the share buttons if you agree/disagree.

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22 comments

Not being a lawyer, I can’t really give insight on the ins and outs of malpractice. But an additional problem I see approaching for doctors is the increasing number of meds whose dosage is affected by genetics. Every year the package inserts for things like Warfarin come closer to requiring a genetic test before prescribing, and I’ve lurked on some legal blogs where the commenters were practically salivating over the prospects for malpractice insurance.

That’s a case in which the test only needs to be done once, of course, so it might behoove the medical community to figure out at which level in the process it would be most efficiently ordered, what kind of consent from the patient would be required, and how the results should be made available to everyone else in the chain of care. That is, get out ahead of the problem before the lawsuits start happening.

Of course he’s telling it how it is. The distaste is the bitterness of the pill, which indicates its purity.

Tort reform isn’t going to happen. The constituencies are too big, and don’t want it.
That’s both the plaintiffs, and the trial attorneys.
You make a mistake, any mistake = paydays all around, including your malpractice insurance co.; just not for you.

Second, this squeezes doctors, because now that everything is essentially GovernmentCare by any other name, you’re going to be forced to do things by the system that are neither in your nor the patient’s best interest, and you – the MDs – will be holding the financial bag. Heads we win, tails you lose.

Eventually, the solution will be to “C’mon over to the government side, and work for us directly!”

Government already owns the patients, and the insurance companies.

You’re the only free range chickens left to pluck.

This isn’t a flaw in the system, it was the functional design all along.

Once it’s one big happy Nationalized Health Care System, and government is on the hook, they either do tort reform to wipe out another powerful constituency, or they just shrug, and keep passing the cost back around to the taxpayer, and put that many more lawyers on the .gov payroll, making the whole exercise the Attorney Full Employment Act of 2021. It is what NY mayor Fiorella LaGuardia knowingly referred to nearly a century ago as “a self-greasing axle.”

You’re being punked, as we all are.
Elections have consequences.
That crushing sensation is the house that fell on you.
Embrace the socialism, and learn to enjoy it, or get it repealed.
There’s no third way, and time is running out.

You make some very good points, Aesop. Though I wish it wasn’t true, you may be on target with quite a few of them. Is this what you thought you were signing up for, as an idealistic and bright-eyed pre-med?

That conversation never happened. Either the original poster made it up or the “malpractice lawyer” is some dimwitted lawyer who knows little about the field and has never tried a malpractice case. Malpractice is hard as hell and risky as hell.

I practice in Philadelphia County, which has for years been deemed a “hellhole” by tort reform associations. One of the worst in the country, right?

In 2013, there were 20 malpractice jury trials. 11 went for the defense.
In 2012, it was 27 and 14.
In 2011, it was 25 and 14.
In 2010, it was 34 and 26.

Thus, even in a tort “hellhole,” the doctor has better odds at trial than they do at any table in the casino. Across the state, in 2013, there were 110 malpractice trials, and 85 went for the doctor. 77%.

This is all despite the legal requirement that, in every one of these cases, the plaintiff has on their side an expert witness who practices in the same field as the doctor, and that plaintiff’s lawyers are hesitant to bring these cases at all, because they’re expensive and often result in a huge loss.

Juries have been trained by years of propaganda to hate malpractice cases, and will find any reason to excuse even blatantly negligent conduct. There was a recent trial around here where the doctor apologized on the stand to the patient for misdiagnosing their esophageal cancer for a year, endlessly giving them Nexium even while they were coughing up blood, despite the warning on the label to not use it that long and to look for symptoms.

The verdict? Negligence, but no causation, so no liability. Huh?

Correspondingly, malpractice payments have gone down by nearly a third over the past decade. Can anyone here guess what the total national malpractice payments were last year? Odds are good you need to take at least a zero, and maybe two, off your guess.

Here, I’ll give you a tip that will save lives, but most ER doctors don’t bother to do it: DON’T USE YOUR INTUITION, USE THE DIFFERENTIAL DIAGNOSIS.

Virtually every viable ER malpractice case I have seen has the same setup, which is that the doctor shot from the hip and didn’t bother to actually think things through the differential diagnosis. If the differential tells you to do a test, then do it, don’t kid yourself.

Max,
First, thanks for adding your insights.
The statistics you present are interesting. The plaintiff verdict rate in Philadelphia jury trials seems to be significantly higher than that for Pennsylvania as a whole and than that for the nation which I’ve seen cited at about 1 in 8 cases. Might that contribute to the “hellhole” designation?
The anectode you describe doesn’t make any sense and I’m sure that it was an emotional reaction by the jury – just like those that sometimes occur with large plaintiff verdicts … like this:http://jurist.org/paperchase/2014/07/florida-jury-hands-down-40-billion-verdict-against-tobacco-company.php
You’re right on about the decrease in medical malpractice payouts according to NPDB data. About a third fewer payouts. But the number of verdicts > $1 million has steadily increased over those same years.http://www.npdb.hrsa.gov/analysistool/crosstab/index.jsp?REP=MMPR&noQuery=Y
So I’m betting that the total amount paid out hasn’t decreased nearly as much as you suggest.
Finally, regarding your differential diagnosis comment, I’m going to give you a scenario. The differential diagnosis for a complaint of chest pain is at least 440 conditions long.http://en.diagnosispro.com/differential_diagnosis-for/poisoning-specific-agent-chest-pain/24567-154-100.html
Where does/should the workup end for a complaint? You know that as soon as you set a threshold, there’s going to be someone who argues that testing should have been performed beyond that threshold.
And how do you reconcile the failure to diagnose cases with the fact that most professional groups are joining this “Choosing Wisely” campaign and providing lists of medical tests that are considered “unnecessary” even though they may uncover potentially serious disease processes?

I generally like “Choosing Wisely” — and wrote a post two years ago praising it — precisely because it does what should be done: puts screening and treatment on a rational, evidence-based footing.

Your chest pain example is interesting: are you suggesting that Emergency Medicine is such a dubious, unscientific field that, when you see chest pain, you throw your hands up in the air and conclude “it could be anything!” Do your boards have an essay on it, “patient has chest pain,” in response to which you can get a perfect score by saying “it could be any of 440 different conditions, and I cannot tell you which of them are more likely than any other, nor how to rule any of them out?”

Of course not. If a nurse came back to you and said, “a patient has chest pain, but I don’t have any more information,” you’d throw a fit.

There are two issues here. The first is the tug of war between physicians and attorneys regarding medical malpractice and overall fairness. The physicians feel the system favors the attorneys and the attorneys feel the system favors the physicians (yet, it’s the patients who matter the most). That’s not going to change any time soon, and that’s where we will agree to disagree. Your comment focuses on that issue until the very last line, where you say,

“If the differential tells you to do a test, then do it, don’t kid yourself.”

This is the entire crux of the second issue, which is what the post is about. With the evolving push to “save costs” and “reduce tests,” to fix a broken system, we both seem to agree that every incentive is there, from the physician side and the attorney side to do more, not less. To me, that’s the essential take home point of this reported conversation; that despite the new so-called “guidelines” and “recommendations” to reduce costs, reduce tests and reduce admissions, that there will be consequences; that is medical-legal consequences to those who follow them most closely. Doctors don’t want to be pressured to “do less tests” when they feel they are needed. You don’t seem to be advocating doctors doing less tests and treatments when indicated. You’re saying just the opposite, and we agree on that. Yet there is a growing movement to pressure doctors to do less, test less, and admit less, to save a nebulous entity called our “broken system.” None of these entities making the “guidelines” are offering a “get-out-of-court-free card” to the physicians who reduce tests most, are they?

Max,
Your commentary and experience here is very much appreciated, especially by me. I will assure you that the story was not a fabrication. In fact, the whole thing bothered me greatly and it still does. I will say that your later description of the gentlemen seems more accurate (I hope). The gentleman was very smug in his disposition and was probably the most charismatic person in the room. I would not put it past him that he was dramatizing the situation. His goal may have been to amaze/impress me, and at the time he sure did – I will admit. I have since talked with many people personally about this, as it just bothered me. I local JD working in defense of physicians said while there are themes to be concerned with, he was assured this fellow was a fool and likely getting pleasure out of ordeal.

I will say that most physicians are aware of the trial success statistics, as am I. Although, the kind of cases that seem to be exceptions are often ridiculous from a medical perspective. And while we know the odds are in our favor, there is no science in it and all it takes is one to ruin a doctor and their family forever. I have read through my share of cases that have gone against physicians and some that never go to trial but settle. Nobody would argue that there are cases where negligence is clear. But what can be considered shooting from the hip (or intuition) very often is simply practicing good “clinical medicine”. The notion that a differential “requires” labs/tests to rule it out is simply not good medicine.

I’ve said this ad nauseam elsewhere, but not here specifically: a useless test does nothing to ward off malpractice liability. If the test isn’t going to help a patient, it isn’t going to either (a) prevent the harm that would get you sued or (b) explain away your failure to do the test that would have helped. The sole purpose is to make the hospital money.

I welcome more and more and more evidence-based standards. Clearer guidelines would save lives. Hell, more widespread use of medical checklist apps would save lives. People die every year for stupid reasons like “nobody checked INR” or “nobody actually gave the antibiotic.” Better standards also make my job easier, both in terms of selecting cases and in proving them, because I have something to go on.

I disagree strongly that “there is no science in it.” There is tons, and tons, and tons of science in it — the evidence all comes straight from a qualified expert witness, and the standards of proof in a malpractice trial are far higher than the standards used in clinical practice. I once had to spend four hours at trial to get a cardiologist to agree with me that a troponin leak indicates death of heart muscle, all the while drawing endless objections and silly quibbling from the doctor, all mixed with “you’re not a doctor” insults. The jury saw right through him.

Same for “all it takes is one to ruin a doctor and their family forever.” The only way a plaintiff will ever recover above insurance policy limits is if they carry a case forward for years, through all appeals, and through even bankruptcy, where they would have to prove the injury was either caused by fraud or by willful and malicious conduct.

I will respectfully say that expert testimony falls well short on the scientific ladder of evidence quality. Especially when there is no mandate that an expert witness must be of the same specialty as the defendant. In addition I have had the pleasure, as have many others, to read transcripts from trials with “expert” testimony on plaintiff’s behalf and if it was not such a serious matter I would have laughed at the loose associations an correlations promoted as causation.

All that being said, when things get to this level, physicians are on your filed of play, not ours I get that.

In the example you mentioned, and granted I am only going off of a short snippet, could it be perhaps that the cardiologist was long winded because there in fact are instances where elevated troponins are not indicative of heart muscle damage?

Which, because there’s probably no way to know, doesn’t tell us how many cases were settled before trial, generally in favor of plaintiffs.

The trial numbers cited are obviously the relatively few cases where the facts were such that neither side was willing to cave and settle immediately, and more often than not in such cases, the MD prevailed, through a combination of better means, better representation, a deep-pocket insurance company with an unvested interest in contesting claims where they have a leg to stand on, jury goodwill towards MDs, and even, lest someone accuse bias, because the MDs in question may not have actually committed malpractice in the first place.

Pointing out the results that we know is a little like looking for your lost wallet under the streetlight, not because you lost it there, but because the light is better.

If patients and their families feel “listened to” that goes a long way. A doctor taking the extra step to assist the patient with questions (nurses do it daily) probing down to what they are experiencing– that can lead to a diagnosis. And again people generally don’t want to sue someone that they feel like cared and was trying to help them. Currently a patient gets some tests ordered and even if patient is clearly ill –if those tests are normal- the patient is FINE! I’m in IT dept–if I told a doctor-I’m sorry I ran a hard drive test on your computer and there’s no problem so it’s fine. The doctor would would be furious. Why… because more goes into a computer functioning well than just the hard drive—I’m not just looking to rule out a virus. There are multiple systems, feedback systems, and all programs on that computer effect run another–it’s all connected. Sound familiar!! But I wouldn’t be able to diagnose anything unless I asked questions–and actually listened to the answers. My daughter has several medical issues that all started from viral meningitis. We’ve have some amazing doctors, but most were all about results of tests. If she didn’t fit into the box, then nothings wrong. That indifference is what triggers lawsuits!!

You’re absolutely right about the cause of lawsuits, as every survey and in-service about lawsuit avoidance re-iterates, but we don’t ask pilots to fly planes based on the passengers’ feelings. And we don’t want them in the back schmoozing in the aisles, we want them sitting in the cockpit looking at the friggin’ instruments.

The solution is to stop allowing lawsuits for the same dubious reason, not have a hug session about what’s being done. The efficacy of the Great Beside Manner/Lousy Empirical Treatment Results Algorithm was pretty well discredited by medicine by the 1800s.

We spent centuries training doctors to use their heads. It’s too late in the game to keep beating them because they do that but aren’t always loquacious and personable. if you want to sue them because clinically they’re morons, go right on ahead.

When the doctor missed catching my mother’s cancer last year and now its stage 3 this year. My first inclination was to go murder the doctor. But I can’t get away with that in this day and age. I could go ahead and file a medical malpractice lawsuit, but if I lose and have to pay the court costs I will have no other choice but to go ahead and murder the doctor. Prison time doesn’t bother me when somebody kills my mother.

Or, you could just move to the country where no doctors miss a diagnosis of cancer, ever, and the doctors there aren’t allowed to kill patients by maliciously and capriciously giving random patients cancer on purpose while the patients are SOCMOBing.

Sounds like an accurate portrayal of life in medicine these days
The problem that the article misses, though, is that people just want to know they are care for at the highest level and held in the highest esteem.
With the depersonalization of medicine, using CT’s and blood tests in lieu of physical examination, people feel left out to dry and victimized.

I practice defensively by having honest and open odds talks with my patients.
I tell them upfront I am a professional gambler and dealer and I can’t tell you if you’ll win or lose a hand, though like a casino, I’ll win most days of the week
The trick is, I have the odds in my head and a physical cost sheet for any and all procedures.
If the patient feels they made the choice to do or delay a test, it’s less likely they’re going to blame me for that decision.

We see this when people don’t sue bars for letting them get drunk and later hit a tree
But god forbid there be a recall on a potential 1 in 10,000 failure of a car part than can POTENTIALLY result in an accident. They had no choice in this scenario and are highly likely to sue a car company for lack of choice in the risk.
It comes down to risk sharing and gauging how much risk a person is willing to take with guidance.

For example:
Want a CT to check for a 1 in 100,000 brain tumor knowing that the risk of developing one FROM the test is 1 in 10,000?
Ok, be my guest, but I will write that I told you so.
No? Ok, let me know when your symptoms change and we’ll do it then.

Kind of late to the discussion, but Max’s stats, as Aesop pointed out, do not include those settled out of court. Also, the idea, that doctors win most suits by dismissal, by the lawsuit being dropped, or at trial, meaning that this is great for doctors is frankly BS. Lawyers get paid for wins or settlements, not for seeking justice. Thus, is seems that many suits are cases of throwing a dart at a target to see what sticks, and possibly to get a settlement out of court to avoid a costly trial. Sure, it costs lots to take a case to trial; it costs much less to throw those darts early on with the hope that one will stick. I wonder how much this would happen if the plaintiff attorneys (not the actual plaintiffs) would have to cover the legal costs of the defendant physician for dismissed or dropped or won cases-I am sure there is a great, scripted argument that lawyers have as to why this would not be fair to plaintiffs.

My point is a bigger one. For doctors, even if they win, they lose. Lawyers never talk about the emotional, financial and time cost to doctors. To them, these are “costs of doing business.” Bullsh_t. No doctor went into medicine with the knowledge that lawsuits are a part of professional life-perhaps this is changing and medical school education has since adapted. Further, given that there are big cases that win on dubious medical reasons (but great reasons from the plaintiff standpoint), many of these cases have nothing to do with the actual medical care. I had a lawyer tell me that, even though I did everything I could for a patient who died and my medical care was excellent, because the patient was a child there was a good chance that I would loose JUST BECAUSE JURIES ARE SYMPATHETIC TO GRIEVING MOTHERS!

Perhaps even a bigger issue is this: There are cases, as every doctor will tell you, that involve true malpractice. This is almost never intentional (if so, it would be criminal), but often involves doctors trying to to the best for the patient and missing a critical piece of information (that they should have seen). With the number of BS lawsuits that occur (admittedly many of which go nowhere), how often do legitimate lawsuits get lumped with the BS lawsuits, and thus get taken much less seriously?

Further, since lawyers, understandably, want to make money, how often do lawyers take cases that may be medically dubious but have big potential payouts and refuse cases that may be medically legitimate but have lesser potential payouts? I would like to think that this does not happen, but any intelligent person knows that this is usually not the case.

The system is broken. Patients need to have recourse in real malpractice. Doctors need to NOT be sued for BS “lottery” and “dart thrown at the target” cases. But a system where lawyers try to ferret out the “big money” cases while declining legitimate cases, in order to feed the coffers and, as some have said, win the “lottery,” will never be fair to patients or doctors. If I practiced medicine this way, I am sure I would be flooded with (appropriate) malpractice lawsuits!

We’re just human beings we make mistakes— well HUMAN BEINGS each one of you share and error or mistake you’ve made. You know which ones I’m talking about! Not to exclude covering for colleague as well. But first put your hand on the bible, be sworn under oath, get hooked up to a lie detector machine, Swear on someone’s life you love! Just in case someone is less than honest.. [This is you guys]” Okay-Okay, Heres the deal Public- that’s neither here nor there, it’s not your concern, not your problem, let’s just say none of your business” Dearest loved and respected ones – It is our concern, it is our problem, it is our business if you harm us or one of our loved ones “worse kill them. ” not on purpose, accidentally- OUTCOME STILL THE SAME… I hope one day you have the freedom to own your mistakes take full accountability, I can only imagine the overwhelming amount of integrity most with morals will feel and love.